3/28/2012

Yesterday’s questions from Justice Kennedy have the left fearing and the right hoping the Supreme Court will strike down Obamacare’s mandate. People may be getting ahead of themselves. Indeed, people are jumping aheard to discuss the one scenario in which the mandate is struck, but the rest of the law remains. The speculation is intriguing, however premature.

According to the New York Times, house organ of establishment progressivism, Democrats and Republcians have given little thought to the possibility:

White House officials said that they remain confident that the Supreme Court will uphold the law, and that they have done no planning for the possibility of its full or partial demise.

Congressional leaders in both parties also said there had been no significant contingency planning.

The cynic in me finds that hard to believe. However, reading Dalia Lithwick or Michael Kinsley would suggest that liberals simply could not conceive of an unfavorable Court decision on Obamacare. For reasons I may write about later, the idea that Democrats are this much in denial about the possibility seems more plausible to me than it did a year or even a month ago.

The odd couple of Steven Den Beste and Robert Reich think that if only the mandate is truck down, Dems will push for a single-payer system. As Den Beste explains:

Single Payer is what they always wanted. The bill wasn’t originally written that way, though, because they knew that even with twin Democratic majorities, there was no chance of passing it. So they included the mandate instead.

If the mandate is struck down, then Congress will have to act. There won’t be any way to repeal the rest of the law because Obama will veto, and the Senate will sustain the veto. The only thing he will agree to is implementation of single payer.

Reich expands:

If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.

When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.

I think Den Beste and Reich are mistaken here, for a number of reasons. Both recognize Obama embraced the mandate because he could not get single-payer, even with an overwhelmingly Democratic House and 60 Democratic Senators. Yet, after this unpopular law is further discredited by the Supreme Court, there is going to be some surge of momentum for full-on government-run healthcare? Not in a GOP Congress elected in large part on opposition to Obamacare — and there is little reason to believe both chambers will not remain under GOP control after the election. Indeed, Obama will lose the ability to veto changes to Obamacare if he loses reelection, and Congress will have time to see whether that happens.

Even if Obama were to be reelected, there are a number of reasons why a GOP Congress likely would hold the upper hand. First, the reason Democrat super-majorities had difficulty passing Obamacare and rejected single-payer is because insurers, phramaceutical companies, and the healthcare industry generally have a lot of clout. None of the so-called “stakeholders” want single-payer and they donate to politicians across the spectrum. Second, the spectre of insurers going bankrupt — or being nationalized — would not play well for the president who promised you could keep the coverage you have. Third, while the mandate is particularly offensive to conservatives and libertarians as as the embodiment of the idea that the federal government can force you to buy things, it is offensive to the mushy middle primarily as the mechanism by which they are forced to pay. Robert Reich may think these people are excited to shell out payroll taxes to finance Social Security and Medicare; I am less convinced of that. Indeed, while polls tell us most do not want to “cut” these entitlement programs, one lesson of Obamacare ought to be that people know our public finances cannot afford another costly entitlement.

Once again, it seems to come down to Anthony Kennedy. Which doesn’t inspire a lot of confidence, but which is better than leaving it up to a fifth liberal. At least this way we have a chance. And as you’ll see if you keep reading, it’s a real chance.

The constitutional problem with the mandate is simple: the federal government is forcing people to buy something in order to regulate a market. The government’s position is that the uninsured are already “in” the market for health insurance, because of the possibility that an unexpected illness will put them there. Many of the conservative justices seemed to disagree, accepting the opponents’ position that Congress would be forcing individuals to enter commerce. This is, as Justice Kennedy seemed to recognize, an unprecedented move that would change the relationship of the individual to the federal government:

Three of the four other conservatives (Thomas nearly always remains silent) peppered the government’s lawyer with hypotheticals and demands for some principled way of limiting the principle that government could force a citizen to buy something. The government lawyer sort of choked and sputtered and paused his way through the opening part of the argument in responding to examples like these.

For example, Justice Scalia asked: can Congress force people to buy certain foods? Everybody has to buy food, after all, so there is a market for food to regulate. Does that mean so you can make people buy broccoli? If the idea is that we are forcing people to purchase insurance to make it cheaper for others, can Congress make people buy cars based on the principle that a car maker that can’t sell enough cars will have to raise prices, causing those who do buy cars to spend more?

Chief Justice Roberts asked: well, there’s a market in emergency services, so can we force people to buy cell phones to allow everyone to call 911 in an emergency? This way the government regulates that market and makes sure the response will be quick.

Justice Alito asked: isn’t there a market for burial services? When the government lawyer agrees, Alito asked: wouldn’t this be like forcing young people to buy their own burial services, because otherwise they will be forcing their expenses on someone else?

Justice Breyer watched this parade of horribles shambling by and pronounced it a beauty pageant. What’s wrong with any of that? he wondered. What’s wrong with Congress forcing people to buy burial services, if Congress guarantees uniform burial for anyone? What’s wrong with Congress forcing them to buy cell phones, if Congress is indeed regualating the market? What’s the big deal? Why, he said, Congress has created commerce out of nothing before — didn’t they create a central bank in McCullough v. Maryland? (Solicitor Paul Clement smartly pointed out that that was not a Commerce Clause case.)

But the conservatives were clearly concerned with the possible far-reaching consequences of upholding the mandate, The obvious point of all these hypotheticals seemed to be: Once we force citizens to buy something as a regulation on the market, how do we prevent Congress from using the same logic to make us buy something else? Once we let Congress start down this road, where does it end?

The lawyer kept responding, essentially, that this is a unique situation. But lawyers can always find a way to “distinguish” one situation from another. Sure, the typical lawyer arguing a car accident case might say, the plaintiffs in the case just like mine lost, but they were wearing blue shirts! My client was wearing a yellow shirt!

Sure, you can come up with ways that the market for health insurance is supposedly different. But do those points of difference provide a principled basis for distinguishing this mandate from other situations where Congress could order citizens to buy something?

And that is where Justice Kennedy will be making his decision.

I’ll make a couple of final points here.

First, nobody bags on Kennedy more than I do. I have less respect for him than anyone up there. He is a pompous self-important windbag. I can’t stand him.

But if I could remove him and replace him with a fifth Justice like Breyer, I wouldn’t. I’ll take my chances with a Kennedy. Because we might get what we want with Kennedy. We will never get what we want with Breyer. It’s a little like settling for Romney vs. accepting four more years of Obama. Sure, Romney’s a squish. But at least we have a chance.

And this is important stuff. As Kennedy notes, it does fundamentally change the relationship of the individual to the federal government if this mandate survives. If they sanction this, all bets are off. Congress will be able to do almost anything in the name of commerce.

There is also an excellent point that, because of our system of enumerated powers, this might be something the states could do — but it is not something that the federal government could do. (Second look at Romneycare, at least constitutionally?) Justice Scalia makes this point well here:

Finally, I want to also note that even if we beat this, Congress could come up with other ways to do the same thing. Even good-guy lawyer Paul Clement agreed that it would be tougher to oppose Congress’s actions if Congress simply said: OK, we’re taxing everyone. But we can make exemptions, right? So we’re exempting everyone with health insurance.

Clement didn’t accept that this would be constitutional. But it would be tougher, legally, to oppose.

Finally, I will just say that yesterday’s arguments were as fascinating as the first day’s were deadly dull. It’s an issue every citizen should be acquainted with, and you’ll learn more about our system of enumerated powers. Hopefully the clips above whetted your appetite to listen to or read the whole thing. You can do either by following this link.

Today’s arguments: severability. What happens if the Justices kill the mandate? Does it kill the whole law, or just that provision? This is likely to be drier stuff, but it’s important. We’ll come back to it, hopefully tomorrow.